United States Ex Rel. Oliver v. Philip Morris USA, Inc.
101 F. Supp. 3d 111
D.D.C.2015Background
- Oliver filed a qui tam FCA action against Philip Morris USA in 2008; the United States declined to intervene.
- Oliver alleges MF C warranties and pricing disparities in cigarette sales to NEXCOM and AAFES, claiming false certifications and overcharges.
- The district court previously dismissed for lack of subject matter jurisdiction due to the Iceland Memo public disclosure; the D.C. Circuit vacated and remanded.
- On remand, Philip Morris offered new pre-2008 MFC public-disclosure evidence via Internet Archive URLs; Oliver submitted a declaration describing discovery and prior investigative activity.
- The court assesses (i) authenticity of archived pages, (ii) whether they constitute public disclosures, and (iii) whether Oliver is an original source.
- The court grants the Second Motion to Dismiss, concluding the public-disclosure bar applies and Oliver is not an original source.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the public disclosure bar deprive jurisdiction here? | Oliver argues Iceland Memo/MFC were not publicly disclosed. | Philip Morris contends pre-2008 MFC provisions were publicly accessible. | Yes; public disclosures apply, barring jurisdiction. |
| Are the archived webpages authentic and properly authenticated evidence? | Oliver contests authenticity of archived pages. | Defendant submits authenticated Internet Archive copies with marks. | Authenticated; pages sufficient to prove public disclosure. |
| Do the archived webpages qualify as public disclosures under the FCA? | Oliver argues they are not ‘reports’ or ‘news media’ disclosures. | Defendant argues they are administrative reports and/or news media disclosures. | Yes; pages are administrative reports and also fall within the news-media category. |
| Was Oliver an ‘original source’ of the information? | Oliver contends he had direct, independent knowledge and provided information to government before filing. | Defendant argues Oliver's knowledge is not direct/independent; information came from others. | No; Oliver lacks direct and independent knowledge; not an original source. |
Key Cases Cited
- United States ex rel. Findley v. FPC-Boron Employees’ Club, 105 F.3d 675 (D.C. Cir. 1997) (definition of ‘based upon’ and original-source notion in FCA)
- Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645 (D.C. Cir. 1994) (public-disclosure bar logic and ‘X+Y=Z’ framework)
- Schindler Elevator Corp. v. United States ex rel. Kirk, 131 S. Ct. 1885 (2011) (defines ‘report’ broadly for FCA purposes)
- United States Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994) (vacatur and remand principles signaling re-litigation on remand)
- Rockwell Int’l Corp. v. United States, 549 U.S. 457 (2007) (direct/first-hand knowledge standard for original-source)